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Hamzeh and Others v Secretary of State for the Home Department

There was no requirement that Legacy Programme cases be concluded with the granting of leave to remain where removal could not be immediately effected.

20 December 2013

Administrative Court

Simler J

(1) This case concerned five cases that raised similar issues. The Claimants were five failed asylum seekers who claimed to be entitled to indefinite leave to remain in the UK as a result of the Secretary of State's Legacy Programme for dealing with historically unresolved asylum cases.

(2) Permission was granted to Mr Hamzeh on the ground concerning whether difficulties in enforcing removal to Iran gave rise to an entitlement to remain. Mr Abdullahi was granted permission on the basis of a claim that there had been a failure to give adequate reasons. The remaining Claimants, Mr Nejad, Mr Jaffar, Mr Ahmadi, along with Mr Abdullahi, had permission refused on the ‘removability issue', and their renewed applications were listed for this rolled up hearing with the case of Mr Hamzeh.

(3) The final grounds pursued addressed:

(a) whether there was an unlawful failure to conclude the Claimants' cases by removal or grant of leave, contrary to the Legacy Programme;

(b) Had there been a lawful legacy decision in these cases, or did the Claimants' allegation of being ‘irremovable' entitle them to leave under paragraph 395C or 353 of the Immigration Rules;

(c) Had the failure to remove the Claimants led to their being in a state of limbo amounting to a disproportionate interference with their Article 8 ECHR rights;

(d) Was there a failure to give adequate reasons and/or was there any obligation to require that it be stated that 395C and/or chapter 53 of the Immigration Guidance was being applied, and/or was there a failure to have regard to materially relevant factors, such as length of residence and/or removability.

Each Claimant contended that long residence (between 4 and 10 years) justified the grant of leave.

(4) In relation to Mr Hamzeh, it was contended that although he had left and then returned to the UK, upon his return, discretion should have been exercised so that his case was placed back into the Legacy programme.

(5) HELD: The Court emphasised that the Legacy Programme did not create a new right to indefinite leave to remain. Grants of indefinite leave to remain were only the result of a positive outcome of an application of the Immigration Rules. It was also an unsustainable submission to argue that all cases in the Legacy Programme result in the same substantive outcome. Not all cases should be treated the same, as there were a broad range of factual circumstances. The Claimants failed to demonstrate that persons who could not be removed from the UK ought to be granted leave to remain for this reason alone.

(6) The Court held that there had been no promise or commitment that required the conclusion of cases by removal or the grant of leave in this way. The Legacy programme was intended to review the backlog of cases. It gave rise to no additional rights or expectations.

(7) The Court also rejected ground b. The guidance did not require that where the prospects of removal were low, a grant of indefinite leave to remain should follow regardless of other factors. Chapter 53 did not set out requirements to be fulfilled, but rather factors to be considered. Removability was thus held to simply be one of many relevant factors, and was not necessarily a paramount factor.

(8) In relation to the argument that there was an interference with the Claimants' Article 8 ECHR rights by the failure to remove them or grant them leave, the Court held that the Claimants had not yet adduced evidence to establish that voluntary departure was so remote so as to be impossible. The Court held that all of the Claimants had remained in the UK despite having no right to do so, and there was no evidence that they had established private and family life rights that would outweigh removal. The fact that removal could not immediately take place did not change the balance so that there would be a disproportionate interference of Article 8 rights. The Court emphasised that Article 8 did not allow individuals to reside in any country of their choice.

(9) Any state of limbo was said to be self-induced by the Claimants choosing not to leave the UK. Not all cases under the Legacy Programme required an immigration decision. Where cases had already been considered and the Legacy Programme merely led to confirmation of that decision, the requirement for reasons would be reduced.

(10) In relation to ground d, so long as the guidance was considered and applied, there was no need to expressly refer to it, nor list the factors set out. Referring to Westech College [2011] EWHC 1484 (Admin) at [29], the Court emphasised that it would not intervene simply because the reasons given might disclose an error of law. What would be required was that the error meant that the decision was legally flawed. The Claimants thus had to demonstrate that another outcome would have been reached had defective reasoning not been employed.

(11) The Court however considered this in the context of the residence being unlawful, the result of illegal entry and there being a refusal to voluntarily leave. Residence in such cases would be unlikely to weigh in favour of a grant of leave. As to the contention that had their decisions been made earlier, then each of the Claimants would have been granted leave to remain, the Court emphasised that there is no principle that if the Defendant had made an decision earlier resulting in a more favourable outcome, then that decision must be made at a later date.

(12) The Court rejected the submission that Mr Hamzeh's case should have been put back into the Legacy Programme. There was no evidence that his case had been unresolved as, in accordance with the published policy, his departure from the UK had concluded his asylum claim. As there was no evidence that Mr Hamzeh could not return to Iran voluntarily, it was neither irrational nor unlawful that the Defendant conclude that his removal remained appropriate despite a current inability to enforce removal. Further, there was no more than a base assertion that after 10 years in the UK Mr Hamzeh would have established a family life. No evidence was produced to support this. Given this lack of evidence, the Court upheld the decision of the Defendant.

(13) In relation to Mr Abdullahi, residence of less than 6 years was not held to be significant, whilst his non-compliance with immigration reporting restrictions was pertinent. Again, no evidence had been produced to demonstrate that voluntary removal was not possible. The relevant factors in paragraph 353 of the Immigration Rules had been considered and the Court determined that there was no error of law in the Defendant's decision.

(14) In relation to Mr Nejad, the Court held that the decision challenged was made on 18 August 2010, and permission to seek judicial review not lodged until 3 April 2012. The challenge was held to have been brought too late, with no good reason provided for the delay. Accordingly, permission was refused. The Court commented that the claim was, in any event, unarguable on its merits. All relevant factors, including length of residence, delay in a decision being made and non-compliance with reporting restrictions, had been considered in coming to a final decision. The Article 8 claim was held to be unsupported by evidence, and unarguable.

(15) The cases of Mr Jaffar and Mr Ahmadi were held to have been lodged out of time, and permission was again refused. The Court again commented that these cases would have been unarguable on their merits on the basis that the relevant factors had been taken into account, including the length of residence, history of compliance and personal circumstances. Again, no evidence was produced to demonstrate that Mr Jaffar or Mr Ahmadi could not voluntarily leave the UK. Nor was evidence provided in support of their Article 8 claim.